DOJ To Anti-Muslim Troll Pam Geller: You're Suing The Wrong Entity, Genius

There simply aren't enough derogatives in the dictionary to apply to Pam Geller's lawsuit against the DOJ for its "enforcement" of Section 230. Geller doesn't appear to know what she's doing, much less who she's suing. Her blog posts portray her lawsuit against the DOJ as being against Facebook. Facebook has earned the ire of Geller by enforcing its terms of use -- rules Geller clearly disagrees with.

Somehow, Geller has managed to construe the actions of a private platform as government infringement on her First Amendment rights. The connective tissue in her litigious conspiracy theory is Section 230 -- the statute that protects service providers from being sued for the actions of their users.

Considering Geller's fondness for posting inflammatory content, you'd think the last thing she'd want to attack is Section 230. A successful dismantling of this important protection would mean Geller would be even less welcome on any social media platform.

But the burning stupidity propelling Geller's white-hot hazardous waste dump of a lawsuit knows no bounds. Somehow, actual lawyers -- working in concert with Geller -- came up with this breathtakingly wrong interpretation of Section 230.

Section 230 confers broad powers of censorship, in the form of a "heckler's veto," upon Facebook, Twitter, and YouTube censors, who can censor constitutionally protected speech and engage in discriminatory business practices with impunity by virtue of this power conferred by the federal government.

These are the sorts of allegations the DOJ somehow must respond to, thanks to Geller suing Facebook by suing the DOJ or whatever the hell it is that's happening here.

The DOJ has responded [PDF]. It also finds the lawsuit to be a monument of mouth-breathing stupidity but is unable to say so in those exact words. Instead, it simply points out that everything about the lawsuit is wrong -- especially the parts where Geller insists the DOJ is somehow on the hook for "forcing" service providers to avail themselves of the Section 230 "heckler's veto." (h/t Adam Steinbaugh for sending over the motion to dismiss)

Plaintiffs' alleged injury-a private social-media company's removal of content from a particular user's account pursuant to that company's private terms of service-is not an action that is fairly traceable to the United States or the federal statute Plaintiffs identify in their Complaint-Section 230 of the CDA. Instead, Plaintiffs' allegations make clear that they are aggrieved by the decisions of private third parties, whom the United States does not control and whose actions it cannot predict. Plaintiffs' alleged injury is also not redressable by their requested relief. Plaintiffs request that the Court declare Section 230 to be unconstitutional and to enjoin the Attorney General from enforcing this provision. But the Attorney General does not enforce Section 230 against private parties. To the contrary, this provision merely provides an immunity that a private party can invoke as a defense in a private civil lawsuit. Because the Attorney General does not enforce Section 230 against anyone, an injunction prohibiting such non-existent enforcement would be meaningless and would not redress Plaintiffs' alleged injury.

The DOJ goes on to point out that even if Geller and her lawyers could assemble a coherent claim, they're going after the wrong party. The correct target would be Facebook -- which Geller seems to believe is the entity she's actually suing -- rather than the US government, which has nothing to do with the perceived "censorship" Geller's complaining about.

[E]ven if Plaintiffs could establish Article III standing, they fail to state a cognizable constitutional claim because they do not identify any state action that could implicate the First Amendment. It is axiomatic that the First Amendment applies only to the government's restriction of speech, and not to a private individual or entity's decision to permit or restrict speech. Yet Plaintiffs challenge a quintessentially private decision in this case-a social media company's control of its platform pursuant to its terms of service. Under well-established state-action principles, Plaintiffs cannot show that Section 230 caused the constitutional deprivation they allege, or that the entities causing the injury-private social media companies-are state actors. Therefore, Plaintiffs fail to state a claim under the First Amendment and judgment should be entered in favor of the United States.

This judgment is sure to follow presumably with the judicial version of "lolwut" and a dismissal with prejudice. It's not like an amended complaint could fix this brutally-misguided lawsuit. To begin with, it needs an entirely different defendant (Facebook) and the excision of anything involving Section 230, because nothing about that protection has anything to do with the issues Gellar's complaining about. If Geller doesn't like the way Facebook treats her, she's free to complain directly to the company. It likely won't do her any good, but trying to take a company to court for enforcing its terms of use isn't going to go much further than suing the DOJ over service provider immunity.